Don't Let the Neighbors Steal Your Real Estate

July 09, 1989|ROBERT J. BRUSS | Bruss is a San Francisco-area lawyer, author and real estate broker who writes each week for The Times on real estate topics.

Suppose your neighbor builds a fence 3 feet on your side of the property line. It's a nice fence and he didn't ask you to contribute to its cost. So you don't pay too much attention to its location.

However, unless you grant permission or insist that the neighbor remove the fence, he can acquire a permanent prescriptive easement to that 3-foot strip of your land. Incidentally, no payment of property tax is required to obtain such an easement.

The legal requirements for a prescriptive easement are open, notorious, hostile and continuous use of property without the owner's permission for from five to 21 years, depending on state law.

To perfect the prescriptive easement, a quiet-title lawsuit is brought in court. If all the elements can be proved, the court must grant the prescriptive easement.

How can you stop a prescriptive easement? Suppose you own a rural property. A neighbor drives across part of your farm and has been doing so ever since you bought your land. Being a nice person, you don't object. That could be a bad mistake.

If someday you want to develop your property and construct a building where the neighbor has been driving, he could stop you by going to court to get a prescriptive easement.

To stop someone from acquiring a prescriptive easement on your property, just grant written permission to use your land. Permissive use defeats the hostile requirement of a prescriptive easement.

Many people confuse prescriptive easements with acquiring title by adverse possession. The time required to perfect both is usually the same. So are the open, notorious, hostile and continuous use of property without the owner's permission elements. But adverse possession requires payment of property taxes for the specified number of years required.

If you meet all the requirements for adverse possession, then you can acquire title (not just use) to the entire property.

Happens Frequently

For example, in a recent California Supreme Court decision Thomas W. Stevens claimed title by adverse possession to valuable San Francisco property by virtue of his 15-year adverse possession occupancy.

The legal owner did not challenge the occupancy claim. However, Stevens lost his quiet-title lawsuit because he could not prove payment of the property taxes, as required to receive title by adverse possession.

While it may be hard to understand how an owner could allow someone to adversely occupy property for many years, it happens quite frequently. For example, last year I heard of a homeowner who was jailed in Mexico for drug possession.

His U.S. home was taken over by a neighbor who hopes to acquire it by adverse possession. She is paying both the property taxes and the mortgage payments. If the owner doesn't return during the statutory period, the neighbor could acquire the home by adverse possession.

How can you avoid losing property by adverse possession? For various reasons many property owners don't supervise their properties, especially rural land. By failing to inspect periodically, the owner can lose rights to an adverse possessor.

Visit Property Annually

The obvious solution is to check your properties, especially vacant land, at least annually to be certain it is not being occupied adversely. If it is, you can either eject the trespasser or grant written permission to stop adverse possession rights from accruing.

For example, consider all the residents of the Oil Patch states of Oklahoma, Texas and Louisiana who have walked away from their homes. Many lenders don't even know what properties they own. An adverse possessor might easily acquire rights to such a vacant house.

Just last week I received a phone call from a reader who has been watching an adjoining vacant house for three years. The title records show it is owned by the nation's largest mortgage lender.

But when he phoned to inquire about buying the house, the lender denied ownership. This reader is considering moving in, fixing it up a little and paying the property taxes to take a chance on eventually acquiring title by adverse possession. For further details on prescriptive easements and adverse possession in your state, please consult a local real estate attorney.